Does religious freedom law give you a right to abortion?

As the country prepares for the Supreme Court to potentially overturn Roe v. Wade, some Americans are looking to religious freedom law as a way to protect abortion rights.

The thinking goes that members of faith groups that allow for or even require abortions under certain circumstances could cite religious exercise protections to challenge laws limiting abortion access.

But would such lawsuits be successful? Here’s what legal experts say about the relationship between religious freedom and abortion rights:

What’s happening with Roe v. Wade?

The surge in interest in religious freedom law stems from a leaked draft of a Supreme Court opinion obtained and published by Politico earlier this month. The draft shows that at least five justices are interested in overturning Roe v. Wade and Planned Parenthood v. Casey, past rulings that guarantee a right to an abortion until the point of fetal viability, which is around 24 weeks.

If the Supreme Court’s final ruling — which is expected sometime in the next seven weeks — does overturn Roe and Casey, then the power to set abortion rules would return to the states. More than a dozen states already have so-called “trigger laws” on the books that would ban abortion in most cases when they take effect.

How does religious freedom fit into the debate?

In response to the leak, many religious groups and individual people of faith have shared their support for abortion rights. They’re working to correct the common assumption that all religions are rooting for Roe to be overturned, said Elizabeth Reiner Platt, director of the Law, Rights and Religion Project at Columbia Law School

“There’s both a very rich history and current practice of folks seeing abortion care as a religious and moral calling,” she said.

In the months and years ahead, those beliefs could be cited in lawsuits against abortion restrictions. Someone who believes that their faith requires them to get an abortion or that it requires them to provide or facilitate an abortion for someone else could use religious freedom protections to challenge newly implemented policies, Platt said.

“The idea that overturning Roe is going to temper religious conflict is certainly not the case,” she said.

Has religious freedom come up in the abortion context before?

Although the idea of using religious freedom to challenge abortion restrictions might sound novel, legal experts and faith leaders have been debating that possibility for decades.

For example, in the early 1990s, Catholic leaders cited abortion-related concerns to explain their resistance to passing the Religious Freedom Restoration Act, which strengthens protections offered by the First Amendment, wrote Douglas Laycock, a professor of law and religious studies at the University of Virginia, in an email.

“RFRA had overwhelming support, but it was held up for more than three years by the Catholic bishops and some elements of the pro-life movement,” he said. “Those objecting ... feared it would somehow create a statutory right to abortion.”

Even before that policy was proposed, religious freedom played a role in a lawsuit filed in the late 1970s over federal funding rules. In Harris v. McRae, a group of women argued that a policy preventing Medicaid funds from being used to cover abortion services violated the religion clauses of the First Amendment, among other constitutional protections.

In 1980, the Supreme Court ruled 5-4 against the women in part because the majority felt that the group’s interest in abortion access was not primarily faith-based, Laycock said.

“They rejected the free exercise claim on the ground that no plaintiff alleged that her religion was a substantial motivation for her abortion,” he said.

What are the chances of success for a religious freedom claim?

Laycock believes that future faith-based challenges to abortion restrictions would meet a similar fate. Few people of faith are in a position to claim that religion explains their need for abortion access, he said.

“It is not enough that your religion permits abortion; it has to be the reason, or at least one main reason, for the abortion. I don’t know any religion that teaches that as a general matter,” he said.

In the context of a religious freedom lawsuit, a lot can hinge on that distinction, wrote Steven K. Green, professor of law and director of the Center for Religion, Law and Democracy at Willamette University in Salem, Oregon, in an email.

“There’s a difference between whether one’s religious tradition merely allows for abortion (or if) it is a doctrine, as it is a Catholic doctrine that abortion is a sin,” he said.

It is true, Laycock added, that some faith groups mandate abortion in cases where the pregnancy threatens the life of the mother. But the legal system rarely moves fast enough to help someone in that position.

“If you are a woman in that situation, it is generally an emergency and it will be hard to get any kind of court ruling in time,” he said.

But what about religion’s Supreme Court win streak?

Laycock and Green both pointed out that their answers might be surprising since the current Supreme Court is very friendly to religious freedom claims. However, that friendliness likely wouldn’t override the conservative justices’ opposition to abortion, they said.

“They care about abortion a lot more than they care about religious liberty for religious views they disagree with. That’s the realist answer,” Laycock said.

Even if the court accepted a religious freedom claim, they’d have to balance it against the government’s professed interest in upholding an abortion ban, he added.

“The current court majority would say that protecting the life of the fetus is a compelling government interest. Maybe not if they were persuaded that the mother’s life was truly in danger; maybe those facts could peel off one or more votes, if such a case ever got that far. But in the great bulk of abortion cases, they would view the life of the fetus as a compelling government interest,” Laycock said.

Platt shared a similar assessment, but noted that other, state-level courts could be receptive to religious freedom claims.

“These wouldn’t necessarily be Supreme Court cases,” she said.

How are states with strict abortion laws preparing for potential faith-based challenges?

Despite the long odds facing potential faith-based challenges to abortion restrictions, at least one state legislature is working to limit the application of religious freedom law in the abortion context.

Earlier this month, Oklahoma Gov. Kevin Stitt signed SB1503, which criminalizes most abortions after a fetal heartbeat is detected and enables citizens to file civil lawsuits against abortion providers and facilitators. It says that such lawsuits will not “be subject to any provision of the Oklahoma Religious Freedom Act.”

The new policy also updates the text of the Oklahoma Religious Freedom Act to reflect that carveout, Platt said.

The same language is included in another anti-abortion bill, HB4327, which could soon be on Stitt’s desk.

In a statement to the Deseret News, Rep. Wendi Stearman, a Republican member of the Oklahoma House of Representatives who co-authored HB4327, confirmed that the goal of the religion-related language was to prevent legal challenges.

“This section seeks to anticipate and nullify a possible legal challenge to the law,” she said.